31 March 1960
Supreme Court
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MIS. SWADESAMLTRAN LIMITED, MADRAS Vs THEIR WORKMEN

Case number: Appeal (civil) 483 of 1958


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PETITIONER: MIS.  SWADESAMLTRAN LIMITED, MADRAS

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 31/03/1960

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SUBBARAO, K. GUPTA, K.C. DAS

CITATION:  1960 AIR  762            1960 SCR  (3) 144  CITATOR INFO :  RF         1966 SC1657  (3)  R          1971 SC2171  (5,7)  RF         1981 SC 422  (4)

ACT:        Industrial Dispute-Rule of retrenchment-" Last come first go        "-If can be departed from by employer-Protracted  litigation        and  employment  of other hands-If a  ground  for  defeating        claim for reinstatement.

HEADNOTE: The  management  by a notice terminated the services  Of  39 workmen  as a measure of retrenchment.  The workmen went  on strike  which led to an industrial dispute.  The  Industrial Tribunal  interalia held that the strike was  not  justified and that the management had made out of a case of  necessity for retrenchment and no malafides had been established;  but the principle of last come first go had not been observed in selecting  the  personnel for retrenchment and  ordered  the reinstatement  Of 15 out of the 39 workmen retrenched.   The -Appellate Tribunal confirmed the findings of the Industrial Tribunal with certain modifications by way of  compensation. The management came up in appeal by special leave. Held,  that  where a case of retrenchment is  made  out  the employer  has  normally  to follow the  industrial  rule  of retrenchment  last come and first go; for valid  reasons  he may  however depart from the said rule; in that case he  has to  show by reliable evidence, preferably from the  recorded history of the workmen concerned showing their inefficiency, unreliability  or habitual irregularity and can satisfy  the Tribunal  that the departure from the rule was justified  by sound  and valid reasons; otherwise the departure  from  the rule  could  be treated as being malafidc  or  amounting  to unfair labour practice. Held,  further that once it was found that retrenchment  was unjustified and improper it is for the Tribunal to  consider to  what  relief the retrenched workmen  will  be  entitled; ordinarily  retrenched  workmen would be entitled  to  claim reinstatement,  and  the  fact  that  in  the  meantime  the employer  has  engaged other workmen would  not  necessarily defeat the claim for reinstatement, nor would the fact  that

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protracted   litigation  in  regard  to  the   dispute   has inevitably   meant   delay   defeat   such   a   claim   for reinstatement.   Therefore  the conclusion that  15  workmen were improperly retrenched cannot be sucessfully challenged.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 483 of 1958.        Appeal  by special leave from the decision dated  March  20,        1956, of the Labour Appellate Tribunal of India, Madras,  in        Appeal No. Bom. 90 of 1952 arising        145        out of the Award dated December 28, 1951, of the  Industrial        Tribunal, Madras, in Industrial Dispute No. 48 of 1951.        1960.  February 11, 12.  M. C. Setalvad, Attorney-General of        India,  B.  Ganapathy  lyer and G.  Gopalkrishnan,  for  the        appellants.   This appeal arises from an Industrial  Dispute        between M/s.  Swadesamitran and their workmen.  Three  items        of dispute were referred for adjudication to the  Industrial        Tribunal at Madras.  One of them being whether the retrench-        ment  of 39 workmen affected by the appellant in  May  1951,        was  justified,  and  if not,  what  relief  the  retrenched        workmen  were entitled to.  The modified award directed  the        reinstatement  of  15  of the  retrenched  workmen  and  the        question is whether such direction is correct.  It has to be        remembered  that the direction was given on March 28,  1956,        in respect of retrenchment made in May 1951, with half their        back wages.        The Tribunal erred in applying the rule "last come first  go        "  as if it were an inflexible rule.  The management is  the        best Judge as to who were fit to be retained and who  should        be  sent  out.   No  doubt,  if  the  selection  of  persons        disclosed  that  the  management was guilty  of  any  unfair        labour   practice,   that  would  have   been   ground   for        interference.   Tribunal  and the Appellate  Tribunal  found        that the action of management in selecting the personnel was        not  at all malafide.  It cannot be said to be  unreasonable        if  persons  are  selected for discharge  because  they  had        reached  an age which would affect their efficiency  and  so        fit for being retrenched.  It cannot be the rule that once a        workmen  is  entertained  he should be  kept  on  for  ever.        Moreover,  the evidence shows that a committee of three  sat        for  the  purpose of making a, selection  and  they  applied        their  minds  to  the  problem and  took  into  account  all        factors, viz. length of service, efficiency, defect in  eye-        sight  with regard to very small types and general  aptitude        for  the  new kind of work on lino machines.   Further,  the        workmen had themselves settled accounts with the  management        and  drawn whatever was due to them and their claims  having        been satisfied it was unfair         19        146        and unjust to direct that they should be reinstated in their        old jobs with back wages.  The others were found inefficient        and  irregular in attendance and therefore the selection  by        the  management should not have been interfered with at  all        by the Tribunal.  Principles of social justice do not compel        an  employer  to  keep  an  inefficient  or  unsuitable  and        superannuated  workman in his service.  The principle  of  I        last come first go’ should not have been so strictly applied        on  the facts of this case.  The Labour  Appellate  Tribunal        erred  in  law in directing reinstatement when  it  did  not        differ  from the conclusion of the Industrial Tribunal  that        the  strike of the respondents was unjustified and that  the

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      appellants  had acted bona fide in coming to the  conclusion        that  retrenchment of 39 workmen was necessary.  It is  only        if the Industrial Tribunal was satisfied that in retrenching        its employees the appellant had acted malafide that it would        be  open  to  the Tribunal to interfere with  the  order  of        retrenchment   passed  by  the  appellant.   The  order   of        reinstatement in substance is inconsistent with the findings        about the bona fides of the appellant.        The  Tribunal further erred in preparing a pooled  seniority        list  to  determine the seniority.  The management  must  be        given  the  discretion  to  run the  business  in  its  best        interests  and  it is not for the Tribunal to say  that  the        work   done  in  the  several  sub-sections   of   composing        department was similar and the workmen can be inter-shifted.        Merely because no record was maintained as to the fitness or        otherwise  of each individual worker prior to the  retrench-        ment,  it was not right to infer that there was no  material        for  the management to judge of the comparative  fitness  of        the workmen under it.  In entertaining the grievance of  the        workmen  against  their  order of  retrenchment  the  Labour        Appellate   Tribunal   has   exceeded   its    jurisdiction.        Retrenchment is and must, be held to be a normal  management        function   and  privilege,  and  as  soon  as  a  case   for        retrenchment  has been made out liberty and discretion  must        be  left to the employer to select which employee should  in        fact  be  retrenched.   In  holding  an  enquiry  about  the        Validity of reasonableness of retrenchment of certain        147        specified  persons the appellate tribunal had trespassed  on        the   management   function  and  as   such   exceeded   its        jurisdiction.        C.   Anthoni   Pillai,  (President,  City   Printing   Press        Workers’ Union), for the respondents was not called upon  to        reply.        1960.  March, 1. The Judgment of the Court was delivered by        GAJENDRAGADKAR, J.-This appeal by special leave arises  from        an  industrial dispute between Messrs.  Swadesamitran  Ltd.,        Madras (hereinafter called the appellant) and their  workmen        (hereinafter called the respondents).  On November 3,  1951,        three items of dispute were referred for adjudication to the        Industrial Tribunal at Madras by the Madras Government under        s. 10(1)(c) of the Industrial Disputes Act, 1947 (Act XIV of        1947) (hereinafter called the Act).  One of these items  was        whether  the  retrenchment  of 39 workmen  effected  by  the        appellant in May 1951 was justified, and if not, what relief        the  retrenched  workmen  were entitled  to.   It  would  be        relevant  to mention briefly the material facts  leading  to        this  dispute.   It  appears that on August  26,  1950,  the        respondents addressed a charter of demands to the  appellant        in which eleven demands were made, and they intimated to the        appellant  that, if the said demands were not granted,  they        would  go  on  strike.  The appellant  pointed  out  to  the        respondents that it was working at a loss and that proposals        for  retrenchment  and rationalisation were then  under  its        active  consideration.  It promised the respondents that  as        soon as its financial condition improved their demands would        be  Sympathetically considered.  Thereupon the demands  were        withdrawn;  but on January 24, 1951,  another  communication        was addressed by the respondents making as many as  thirteen        demands  coupled  with  the same threat  that  if  the  said        demands were not granted the respondents would go on strike.        A  copy of this communication was sent to the State  Govern-        ment  which  was  requested to refer the  said  demands  for        adjudication  to the industrial tribunal.   The  Government,        however referred the matter to the Conciliation Officer  who

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      found that the demands were        148        not justified.  He accordingly made a report on February 22,        1951.   Immediately thereafter the respondents wrote to  the        Government  repeating  their request for reference,  but  on        April  24,  1951, the Government ordered that  no  case  for        reference had been made.        Meanwhile   the  appellant  was  taking  steps   to   effect        retrenchment  in  the staff owing to the steep rise  in  the        prices of newsprint and scarcity of supplies, the imposition        by the Government of India of a price page schedule and  the        progressive  introduction of mechanisation in the  composing        section  by  installation of lino-type machines.   When  the        respondents came to know about this their Union called for a        strike ballot and as a result of the ballot the  respondents        decided to go on strike.  A notice in that behalf was issued        on  May  9,  1951.   The  appellant  then  appealed  to  the        respondents not to precipitate matters, promised to consider        their demands as soon as its financial position improved and        warned  them  that, if they refused to report  for  work  in        accordance  with the strike notice, it would deem to  amount        to resignation of each one of the strikers of his job.   The        Conciliation  Officer  who was approached by  the  appellant        also   advised  the  respondents  not  to  go   on   strike.        Nevertheless the respondents went on strike on May 30, 1951.        Before  the respondents thus went on strike services  of  39        members  of the staff had been terminated by a notice  as  a        measure  of retrenchment with effect from May 18, 1951.   It        is  the  retrenchment of these 39 workmen which led  to  the        industrial  dispute  with  which we  are  concerned  in  the        present appeal.        Before  this dispute was thus referred for adjudication  the        respondents  had  filed a writ petition in the  Madras  High        Court asking for a writ calling upon the Government to  make        a  reference  under  s.  10(1)(c) of  the  Act.   This  writ        application  was allowed; but on appeal the Court of  Appeal        modified   the  order  issued  by  the  original  court   by        substituting   a  direction  that  the   Government   should        discharge its duties under s. 12(5) of the Act.  On June 12,        1951, the strike was called off by the respondents and  they        offered  to  resume  work; but by  then  the  appellant  had        engaged        149        new  hands and so it was able to re-engage only some of  the        respondents who offered to resume work.  The failure of  the        appellant  to take into service all its workmen  is  another        item  of  dispute  between the parties; but  with  the  said        dispute  the present appeal is not concerned.  It was  as  a        result of the order passed by the Madras High Court that the        present  dispute was ultimately referred for adjudication to        the industrial tribunal.        The   tribunal  held  that  the  strike  declared   by   the        respondents  was  not justified and that the  appellant  was        justified in retrenching 39 workmen in question.   According        to  the  tribunal,  though in  retrenching  39  workmen  the        principle  of  I  last  come  first  go’  was  not  strictly        followed, the appellant was justified in departing from  the        said principle because it was entitled to give preference to        "  persons mechanically inclined and having good  eyesight."        That is why the tribunal rejected the respondents’ plea that        in effecting retrenchment the appellant had indulged in  any        unfair  labour  practice.  Since the tribunal  was  satified        that  the  retrenchment of 39 workmen was  effected  in  the        usual course for good and sufficient reasons it ordered that        the said retrenched workmen were not entitled to any relief.

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      The  respondents challenged this award by an  appeal  before        the  Labour Appellate Tribunal.  The appellate tribunal  was        satisfied that the impugned finding about the bona fides and        the  validity  of the retrenchment was not  justified.   It,        therefore,  remanded  the  proceedings  to  the   industrial        tribunal  for deciding afresh the four points formulated  by        it.  Two of these points are relevant for our purpose.   One        was  whether  the  formula I last come first  go’  had  been        complied with, and if it was not, the tribunal was asked  to        scrutinise  in  relation  to  each  individual  whether  the        reasons  for breaking the said rule were sufficient  in  his        case; and the other was whether the management was motivated        by any unfair labour practice or victimisation.        Pursuant  to  this order of remand the  industrial  tribunal        allowed  an opportunity to the appellant to  lead  evidence,        and, on considering the evidence, it came to the  conclusion        that the appellant had made        150        out  a  case of necessity for retrenchment and that  it  had        justified  the extent of retrenchment as pleaded by  it.  No        mala fides in that behalf had been established according  to        the tribunal.  It, however, held that the principle of ’last        come  first  go’  had not been  observed  in  selecting  the        personnel for retrenchment; and it rejected the  explanation        given by the appellant in retrenching 15 out of the said  39        workmen.  That is why it ordered the.appellant to  reinstate        the  said 15 workmen without any back wages.  In  regard  to        the  remaining 24 workmen no order was made by the  tribunal        in respect of any compensation payable to them.        On  receipt  of the findings recorded by  the  tribunal  the        matter  went  back to the Labour Appellate  Tribunal.   Both        parties  had  filed  objections  against  the  findings   in        question.    The   appellate   tribunal   considered   these        objections  and held that the appellant had made out a  case        for retrenching 39 of its employees; but it agreed with  the        industrial  tribunal that the principle of ’last come  first        go’ had not been observed and that no case had been made out        to depart from the said principle.  That is why it confirmed        the  finding  of the tribunal that the  15  named  employees        should  be  reinstated and added that they should  be  given        half  the  amount  of their back wages.  In  regard  to  the        remaining 24 workmen who had been retrenched, the  appellate        tribunal  directed that they should be awarded  compensation        at  the  rate  of half a month’s  wages  including  dearness        allowance  for  each year of service.  It  is  against  this        decision  that  the  present appeal has  been  preferred  by        special leave.        The  first  point  which the  learned  Attorney-General  has        raised  before us in this appeal on behalf of the  appellant        is  that  the  Labour Appellate Tribunal  erred  in  law  in        directing  reinstatement  when it did not  differ  from  the        conclusion of the industrial tribunal that the strike of the        respondents was unjustified and that the appellant had acted        bona fide in coming to the conclusion that retrenchment  of’        39  workmen was necessary.  It is urged that it is  only  if        the industrial tribunal is satisfied that in retrenching its        employees the appellant had acted mala fide that it would be        open to the        151        tribunal to interfere with the order of retrenchment  passed        by  the appellant; and the argument is that s the  order  of        reinstatement in substance is inconsistent with the findings        about the bona fides of the appellant.  In our opinion  this        argument  is  misconceived.  There are two  aspects  of  the        question with which the appellate tribunal was concerned  in

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      the  present  proceedings: Was the  appellant  justified  in        coming  to  the  conclusion in exercise  of  its  management        function and authority that 39 workmen had to be retrenched;        if yes, has the retrenchment been properly carried out ? The        first question has been answered in favour of the  appellant        by  both  the tribunals below.  It has been found  that  the        respondents’ strike was unjustified and that for the reasons        set out by the appellant retrenchment to the extent  pleaded        by it was also called for and justified.  It is in regard to        this  aspect  of the matter that the  appellant’s  bonafides        have Do doubt been found; but the bonafides of the appellant        in  coming  to  the conclusion that 39  workmen  had  to  be        retrenched  have  no  material bearing  nor  have  they  any        relevance  in  fact  with the question  as  to  whether  the        appellant  acted  fairly  or  reasonably  in  selecting  for        retrenchment the 39 workmen in question.  It is in regard to        this  latter aspect of the matter that  concurrent  findings        have  been  recorded  against the appellant  that  it  acted        without justification and the retrenchment of the 15 workmen        in   question   amounts  to  an  unfair   labour   practice.        Therefore,  it is not possible to accept the  argument  that        there  is any inconsistency in the two findings.  They  deal        with two different aspects of the matter and so they  cannot        be said to conflict with each other at all.        It  is then urged that in entertaining the grievance of  the        respondents  against their order of retrenchment the  Labour        Appellate Tribunal has exceeded its jurisdiction.  The, case        presented before us on this ground assumes that retrenchment        is  and must be held to be a normal management function  and        privilege,  and as soon as a case for retrenchment had  been        made out liberty and discretion must be left to the employer        to select which employees should in fact be retrenched.   In        holding an enquiry about the.validity        152        or  reasonableness  of  retrenchment  of  certain  specified        persons  the  appellate  tribunal  has  trespasser  on   the        management   function   and  as  such   has   exceeded   its        jurisdiction.   We are not impressed by this  argument.   It        may be conceded that if a case for retrenchment is made  out        it would normally be for the employer to decide which of the        employees  should be retrenched; but there can be  no  doubt        that the ordinary industrial rule of retrenchment is I  last        come  first go’, and where other things are equal this  rule        has   to   be  followed  by  the   employer   in   effecting        retrenchment.  We must, however, add that when it is  stated        that other things being equal the rule I last come first go’        must  be applied, it is not intended to deny freedom to  the        employer  to  depart from the said rule for  sufficient  and        valid   reasons.   The  employer  may  take   into   account        considerations  of efficiency and trustworthy  character  of        the  employees, and if he is satisfied that a person with  a        long  service  is  inefficient,  unreliable  or   habitually        irregular  in the discharge of his duties, it would be  open        to  him  to  retrench his services while  retaining  in  his        employment  employees who are more efficient,  reliable  and        regular  though  they  may  be  junior  in  service  to  the        retrenched  workmen.   Normally,  where  the  rule  is  thus        departed  from there should be reliable evidence  preferably        in  the  recorded history of the workmen  concerned  showing        their inefficiency, unreliability or habitual  irregularity.        It is not as if industrial tribunals insist inexorably  upon        compliance  with the industrial rule of  retrenchment;  what        they insist on is on their being satisfied that wherever the        rule  is departed from the departure is justified  by  sound        and valid reasons.  It, therefore, follows that, wherever it

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      is proved that the rule in question has been departed  from,        the  employer must satisfy the industrial tribunal that  the        departure  was justified; and in that sense the  onus  would        undoubtedly  be on the employer.  In dealing with  cases  of        retrenchment it is essential to remember that the industrial        rule  of I last come first go’ is intended to afford a  very        healthy  safeguard against discrimination of workmen in  the        matter  of  retrenchment, and so, though  the  employer  may        depart from the rule, he should able to justify        153        the  departure  before the industrial tribunal  whenever  an        industrial  dispute is raised by retrenched workmen  on  the        ground  that their impugned retrenchment amounts  to  unfair        labour practice or victimisation.        It  appears  that in 1946 the Government  of  India,  in-its        Department   of   Labour,  formulated  certain   rules   for        retrenchment  and  commended, them to the attention  of  all        employers  of  labour and trade unions so that  disputes  on        that score may be minimised.  Rule 4 amongst the said  rules        was  that  as a rule discharge of personnel  who  are  still        surplus  to  requirements should be in accordance  with  the        principles  of  short  service, that is  to  say,  last  man        engaged  should  be  the first man to  be  discharged.   Due        notice  or wages in lieu thereof should be given.  The  same        principle  has  been  accepted  and  applied  by  industrial        tribunals  on several occasions (Vide : Indian Navigation  &        Industrials,  Alleppey  And  Certain  Workmen  (1);  Cuttack        Electric  Supply  Co.  Ltd.  And Their  Workmen  (2)  ;  and        Shaparia Dock and Steel Company And Their Workers (3) ).  We        ought  to  add  that  the  same  principle  has.  now   been        statutorily recognised by s. 25(g) of the Act.  This section        provides inter alia that where any workman in an  industrial        establishment,  who  is  a  citizen  of  India,  is  to   be        retrenched,  the  employer  shall  ordinarily  retrench  the        workman  who was the last person to be employed in the  same        category,  unless, for reasons to be recorded, the  employer        retrenches  any  other  workman; in  other  words,  by  this        section a statutory obligation is imposed on the employer to        follow the rule, and if he wants to depart from it to record        his reason for the said departure.        In  support  of  his contention that  the  Labour  Appellate        Tribunal  has  exceeded its jurisdiction  in  examining  the        merits  of the retrenchment effected by the  appellant,  the        learned   Attorney   -General  has   relied   upon   certain        observations made by this Court in the case of J. K. Iron  &        Steel  Co.  Ltd.  v.  Its Workmen  (4).   Dealing  with  the        argument  of  the appellant that the order  of  retrenchment        should  be left to the management and that the  decision  by        the management that        (1) (1952) II L.L.J. 611.        (2) 1954 1 L.L.J. 723.        (3)  (1954) II L.L.J. 208.        (4)  Civil Appeal No, 266 of 1958 decided on 11-2-1960.        20        154        some  employees are better qualified than others should  not        be  questioned  by  the adjudicator unless he  came  to  the        conclusion that the preferential treatment was deemed to  be        malafide, this Court observed that the proposition  involved        in the argument was unexceptionable, it was added, that,  if        the preferential treatment given to juniors ignores the well        recognized principles of industrial law of ’first come  last        go  without any acceptable or sound reasoning a tribunal  or        an  adjudicator  will  be well justified to  hold  that  the        action  of the management is not bona fide.  We do  not  see

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      how either of the two propositions set out in this  judgment        can support the appellant’s argument before us. The position        under  the  industrial law seems to us to be  fairly  clear.        The  management  has  the  right  to  retrench  the  workmen        provided   retrenchment   is   justified.    In    effecting        retrenchment  the management normally has to adopt and  give        effect  to the industrial rule of retrenchment.   For  valid        reasons it may depart from the said rule.  If the  departure        from  the  said  rule  does not  appear  to  the  industrial        tribunal  as valid or satisfactory, then the action  of  the        management  in so departing from the rule can be treated  by        the  tribunal as being mala fide or as amounting  to  unfair        labour practice; in other words, departure from the ordinary        industrial  rule of retrenchment without  any  justification        may itself, in a proper case, lead to the inference that the        impugned   retrenchment   is   the   result   of    ulterior        considerations  and as such it is mala fide and  amounts  to        unfair labour practice and victimisation.  That is precisely        what  this Court has held in the case of J. K. Iron &  Steel        Co. Ltd. (4).  We are, therefore, satisfied that there is no        substance  in the appellant’s contention that the  tribunals        below have exceeded their jurisdiction in enquiring into the        validity of the retrenchment of the 39 workmen in question.        There  is one more point which may briefly be  mentioned  in        this   connection.   After  the  matter  was  remanded   the        industrial  tribunal has carefully considered  the  evidence        given by the appellant.  In fact it is clear from the record        that at the original enquiry no evidence had been led by the        appellant to justify        (1)  Civil Appeal No. 266 of i958 decided on 11-2-6o.        155        the departure from the rule even though it was conceded that        the  rule  had  not been  followed.   The  Labour  Appellate        Tribunal,  therefore, fairly gave a chance to the  appellant        to justify the said departure, and accordingly evidence  was        led  by  the  appellant.   This  evidence  consists  of  the        testimony  of Mr. Lakshminarasimlian, who has  been  working        with  the appellant for 32 years.  He works as an  Assistant        Editor,  and in addition- attends to press work.  He  stated        that he was having a personal supervision of the entire work        and that when retrenchment was actually effected a committee        was  appointed  consisting  of  himself,  the  Manager   Mr.        Ayyangar and the Press Manager Mr. Rajagopala Ayyangar.   At        the time of the enquiry the Manager was dead.  According  to        the. witness the committee took the advice of the Foremen of        various  sections  in  deciding  which  workmen  should   be        retained  and which should be retrenched.  The witness  gave        evidence  about the defects in the cases of the  39  workmen        who were retrenched; and in support of his oral testimony he        filed two statements T-1 and T-2 giving material particulars        in respect of all the said workmen.  It is admitted that  no        records  were  made  at the time when  the  cases  of  these        workmen were examined and so the witness was driven to  give        evidence  merely  from memory.  The tribunal has  held  that        having regard to the nature of the defects attributed to the        several  workmen  to  which  the  witness  deposed  it   was        impossible to accept his testimony as satisfactory, and  the        tribunal was also not satisfied that it was likely that  the        witness should have any personal knowledge in regard to  the        said  defects.   In the result the  tribunal  rejected  this        testimony.   It also examined some cases ’in detail, and  it        was  satisfied that the reasons given for  retrenching  them        were  demonstrably unsatisfactory.  It is on these  findings        that ’the tribunal came to the conclusion that the appellant        had  not shown any valid or reasonable ground for  departing

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      from  the usual rule, and this finding has been accepted  by        the Labour Appellate Tribunal.  In such a case we do not see        how  in  the present appeal the appellant  can  successfully        challenge   the  correctness  of  the  conclusion  that   in        substance the retrenchment        156        of  the 15 workmen amounts to an unfair labour practice  and        victimisation.        That  leaves two minor questions which were  formulated  for        our decision by the learned Attorney-General.  He  contended        that, even if the impugned retrenchment of the 15 workmen in        question  was  not justified, reinstatment should  not  have        been  directed ; some compensation instead should have  been        ordered;  and  in the alternative he argued that  the  order        directing compensation to the remaining 24 retrenched  work-        men was also not justified.  We do not see any substance  in        either  of  these two contentions.  Once it  is  found  that        retrenchment  is  unjustified  and improper it  is  for  the        tribunals  below to consider to what relief  the  retrenched        workmen  are  entitled.  Ordinarily, if a workman  has  been        improperly and illegally retrenched he is entitled to  claim        reinstatement.  The fact that in the meanwhile the  employer        has  engaged other workmen would not necessarily defeat  the        claim for reinstatement of the retrenched workmen ; nor  can        the fact that protracted litigation in regard to the dispute        has  inevitably  meant  delay,  defeat  such  a  claim   for        reinstatement.  This court has consistently held that in the        case  of  wrongful dismissal, discharge or  retrenchment,  a        claim  for reinstatement cannot be defeated  merely  because        time has lapsed or that the employer has engaged fresh hands        (Vide: The Punjab National Bank Ltd. v. The All-India Punjab        National  Bank  Employees’  Federation  (1);  and   National        Trans.port and General Co. Ltd. v. The Workmen (2).  Then as        to  the  compensation  awarded  to the  15  and  24  workmen        respectively,  it is a matter of discretion and as  such  is        not open to challenge in the present appeal.        In the result the appeal fails and is dismissed with costs.                              Appeal dismissed                             -----------------        (1)  [1960] I S.C.R. 806.        (2)  Civil  Appeal  NO. 372 Of 1956 decided on  january  22,        1957, 157